How a federal court battle in Vermont could recast nuclear power

Under existing law, states have definite – if strictly limited – rights regarding nuclear power plants. These included a say in the siting, economics, transmission, aesthetics and other issues. States do not have authority over safety and licensing. That resides squarely with the federal government.

The Vermont case could reinforce those states’ rights, expand them – or see them overturned entirely. Entergy argues the federal government has near-complete control over the licensing of nuclear power plants. If the case rises to the US Supreme Court, as some suspect it might, the ruling could sharply curb federal say on nuclear power plants inside state lines.

“Litigation is by far the least-preferred approach,” said Richard Smith, president of Entergy Wholesale Commodities, in a statement. “But it is clear our disagreement with the state of Vermont on the scope of its authority over Vermont Yankee cannot be resolved between the two parties."

There are unique issues, too. Unlike other states, Vermont negotiated a 2002 agreement with Entergy, which it amended in 2006, giving the state authority to grant – or not – a state permit, if the company sought to relicense the plant. Last year, the state senate voted 26 to 4 to refuse a new state permit, citing radioactive leaks that went unreported and the collapse of a Vermont Yankee cooling tower in 2007, among other concerns.

Despite these unique elements, Mr. Mamlyuk, Ms. Curran, and other experts say the decision appears to fall under precedent set by a 1983 Supreme Court case in which California succeeded in blocking Pacific Gas & Electric (PG&E) from building new nuclear plants, due to lack of nuclear-waste storage. The case also established "federal preemption" – and the supremacy of federal oversight of nuclear licensing and safety matters.

"If this case were to change the 1983 court decision, then every state would lose the power they've had since joining the union," says Michael Dworkin, former chairman of the Vermont Public Service Board. "We're talking about a state's power over land use and all powers not expressly taken away by Congress. That's what's at stake if the company convinces the Supreme Court to take away those powers currently granted."

Peter Bradford is less sure the case outcome could broaden state power, but agrees it could provoke Congress to set new terms for the collision between nuclear-power jurisdiction and states’ rights.

"This is probably the first major litigation involving [federal] preemption in years," says Mr. Bradford, a former NRC member and former chair of the Maine and New York utility commissions. "It will present some big questions for Congress to solve, no matter the outcome of this case."

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